Ward, Leonard Edward Ors v Williams Hughie

Re: HUGHIE WILLIAMS; ALLAN McPAUL; CLARENCE ROHWEDER; GREGORY NEWTON;
HENRY ASPLIN; STUART CROSBY; DAVID PEARCE; MERVYN KENDALL and JOHN
HINSPETER
And: LEONARD EDWARD WARD
Q. No. 10 of 1984
Industrial Law
8 IR 234

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Neaves J.

CATCHWORDS

Industrial Law - Commonwealth - Registered organization - Rules -Construction - Resolutions of Branch Committee of Management - Whether authorised by the rules - Resolutions relating to employment of staff, termination of employees' services and use of branch equipment by sub-branch staff - Inter-relation of powers of Branch Committee of Management and Branch Secretary - Whether resolution sufficiently clear and precise to make it appropriate that Court order that it be carried into effect - Whether Branch Committee of Management intending to act on resolution.

Conciliation and Arbitration Act 1901, s.141

Practice and Procedure - Federal Court Rules, Order 4, sub-rule 15(2) - Application under s.141 of the Conciliation and Arbitration Act 1904 - Parties proceeding on basis that on application for rule to show cause Court would hear and determine substantive issues - Desirability that prescribed procedure be followed.

HEARING

CANBERRA

#DATE 26:9:1984

ORDER

1. The respondent observe the provisions of paragraph 47(c)(i) of the Rules of the Transport Workers' Union of Australia by carrying into effect so much of the resolution of the Committee of Management of the Queensland Branch of the Union carried on 13 June 1984 as requires that the necessary steps be taken to terminate the employment of Mrs Fay Potter as an employee of the Queensland Branch of the Union.

2. Otherwise the application be dismissed.

3. There be no order as to the costs of the application.

JUDGE1

These proceedings present yet another facet of the continuing disputation between two groups within the Queensland Branch of the Transport Workers' Union of Australia ("the Union") each of which seeks to control the affairs of that branch. The ballot box failed to give supremacy to either group. At the most recent elections, the results of which were declared on 9 March 1984, Leonard Edward Ward ("the respondent") was elected to the position of Branch Secretary defeating Hughie John Williams (one of the applicants in these proceedings) for that position. Members of the respondent's team were elected to a minority of the 14 positions on the Branch Committee of Management, a majority of those positions being filled by members of Mr Williams' team. Mr Williams was himself elected to the honorary position of Brisbane Sub-Branch Secretary.

Each of the applicants is a member of the Union which is an organization registered pursuant to the Conciliation and Arbitration Act 1904 ("the Act"). The applicants other than Mr Williams are members of the Branch Committee of Management of the Queensland Branch. Mr Henry John Asplin is the Branch President and presided at each of the meetings of the Branch Committee of Management to which it will be necessary to refer.
On 29 May 1984 the Court discharged a rule to show cause issued at the instance of the respondent and others calling upon Mr Williams and 9 members of the Branch Committee of Management to show cause why orders should not be made under section 141 of the Act that the respondents to those proceedings observe certain rules of the Union and why ancillary orders should not be made. Those proceedings arose out of resolutions of the Branch Committee of Management carried on 15 March 1984, 19 April 1984 and 26 April 1984.
The principal resolutions under consideration in those proceedings were the resolutions of 26 April 1984 which provided -

that there be an increase of one in the number of organizers resident within the geographical area of the Brisbane Sub-Branch and that Mr Williams be appointed to the additional position (paragraphs (A), (B),

(C) and (D));

that Branch Organizers performing duty within the Brisbane Sub-Branch area give prompt reports orally and in writing to the Brisbane Sub-Branch Secretary (paragraph

(E));

that the Brisbane Sub-Branch Secretary have access to the membership records, correspondence and documents of the Queensland Branch and to the Queensland Branch office (paragraphs (F), (G), and

(H));

that there be five office staff on the branch assigned to the branch office and the affairs of the branch, those staff to be selected by and responsible to the Branch Secretary, subject to final approval being given to their engagement by the Branch Committee of Management (paragraph (I));

that there be two office staff paid by the Queensland Branch (a senior stenographer and a filing clerk) assigned for the exclusive use of the Brisbane Sub-Branch, that staff to be selected by the Sub-Branch Executive and responsible to the Sub-Branch Secretary, subject to final approval being given to their engagement by the Branch Committee of Management (paragraph (J)); and

that all sub-branch secretaries be competent to make press statements on certain matters.

The resolutions of 26 April 1984 displaced, though not entirely, the resolution of 15 March 1984. A part of that resolution which was not so displaced provided that the branch make available to the Brisbane Sub-Branch Secretary for the purpose of conducting the business of the Brisbane Sub-Branch part of the premises used by the Queensland Branch, namely Room 21, First Floor, Trades Hall, Brisbane.
The resolutions of 19 April 1984 dealt with a variety of matters but, in so far as they were material to those proceedings, they authorised the payment by the Union of the legal expenses incurred by the respondents to those proceedings and the reimbursement to those respondents of all loss of wages arising as a result of their having to attend Court and of all travelling expenses incurred.
The orders made by the Court on 29 May 1984 have, unfortunately, not quelled the disputation between the parties which has continued at the level of the day to day operations of the Queensland Branch office.
This continuing disputation led to the application at present before the Court being filed on 27 June 1984. By that application the applicants seek a rule calling upon the respondent to show cause why orders should not be made under section 141 of the Act directing him to observe and perform the rules of the Union and certain resolutions carried by the Queensland Branch Committee of Management. The application identifies the resolutions as being paragraphs (E), (F), (G) and (H) of the resolutions of 26 April 1984 to which reference has already been made and paragraphs (a), (b), (c), (d), (e), (f) and (g) of a resolution of 13 June 1984.
The minutes of the special meeting of the Branch Committee of Management held on 13 June 1984 record that the meeting had been requested by a majority of delegates for the purpose of considering the implementation of the decision of this Court given on 29 May 1984. The relevant resolution, which was carried at that meeting by a majority of 9 votes to 5, appears in the minutes in the following terms -

"That in accordance to the decision of the Branch Committee of Management meeting held on the 15th March 1984, 19th April, 1984 and upheld by the Federal Court of Australia on the 29th May 1984 be implemented forthwith in the following manner -

(a) That the Queensland Branch Secretary cause an advertisement to be placed in the Courier Mail Friday 15th June 1984 calling for applicants for the following positions. Applications to be in writing and addressed to the Queensland Secretary, Transport Workers' Union, Room 13, First Floor, Trades Hall, Turbot Street, Brisbane -

1. Stenographer

2. One bookkeeper-typist

3. One switchboard operator

4. Two filing clerks-typists

(b) In accordance with the decision of the Federal Court of Australia handed down by Justice Neaves on the 29th May 1984 Q. No. 3 of 1984, the office staff presently employed by the Branch Secretary be immediately reduced to five with the immediate termination of J. Penhallurick and F. Potter.

(c) Applications for these positions to be dealt with at the B.C.O.M. (Branch Committee of Management) on Thursday, 21st June, 1984.

(d) All successful applicants to take up their duties as soon as practicable or as determined by this B.C.O.M.

(e) For the purpose of the administration of the office of the Brisbane sub-branch the following equipment presently situated in the branch office be also utilised by the Brisbane sub-branch secretary and the staff employed by the Brisbane sub-branch executive -

1. Photocopy machine

2. Postage franking machine

3. Telex

4. Offset printing machine.

(f) That a telephone line in the Queensland branch be immediately utilized for the purpose of having two telephones in the Brisbane sub-branch office. The necessary arrangements for this installation be made by the Branch Secretary in conjunction with the Brisbane sub-branch secretary.

(g) That all office administrative equipment e.g. electric typewriters or word processor also be utilised by the Brisbane sub-branch secretary and his staff.

(h) That the B.C.O.M. endorse the employment of P. Reynolds and M. Bean by the Brisbane sub-branch executive to perform duties for the Brisbane sub-branch and are responsible to the Brisbane sub-branch secretary.

(i) In accordance with the decision of the Federal Court of Australia handed down by Justice Neaves this B.C.O.M. now directs branch organisers in the Brisbane sub-branch to report in writing or verbally to the Brisbane sub-branch secretary forthwith on all matters pertaining to the Brisbane sub-branch.

(j) In the event of the decision of the B.C.O.M. and the Federal Court of Australia not being carried out this B.C.O.M. authorises the Branch President to take the appropriate action in accordance with the rules of the union."

A further resolution was also carried by a similar majority in the following terms -

"That in accordance with Federal Court ruling on 29th May 1984 of case Q3 of 1984, all respondants to that order be reimbursed with wages and expenses for attendance at the Federal Court hearing as moved by this Branch Committee of Management."

The parties proceeded on the basis that the Court would hear full argument in the first instance, that is to say, upon the application for the grant of the rule to show cause and would, on the hearing of that applicaton, determine finally the substantive issues. This is, in fact, the way the matter proceeded.
It is to be noted, however, that Order 4, sub-rule 15(2) of the Federal Court Rules provides that a proceeding under section 141 of the Act, as this is, shall be by rule in accordance with Form 6 in the First Schedule calling upon the person or organization concerned to show cause why the order should not be made. An application for such a rule may be made to a Judge ex parte supported by an affidavit verifying the facts upon which the application is based (sub-rule 15(3)).
The procedure so prescribed would seem to be designed to ensure that a person or organization is not to be required to answer an allegation that there has been a failure to comply with the rules of an organization unless the applicant has first satisfied a Judge that a sufficient case has been made by the applicant to warrant that person or organization being so called upon. The procedure followed in this case deprives a proposed respondent of that safeguard and while Order 4, rule 15 remains in force its provisions should, in my opinion, be followed.
When the application came on for hearing the applicants did not proceed with so much of the application as seeks orders in relation to the resolutions of 26 April 1984. It was said by counsel for the applicants that to proceed with the orders sought in respect of those resolutions would necessarily involve a considerable amount of time and expense in examining what might be described as the minutiae of the operaton of the Queensland Branch office, an inquiry which, in the ultimate, might not resolve very much so far as the parties were concerned.
In relation to the resolution of 13 June 1984 the applicants rely on sub-rule 30(a) and paragraph 47(c)(i) of the rules of the Union. It is necessary to refer to those provisions and to certain other of the rules of the Union.
The Branch Committee of Management of the Queensland Branch of the Union, subject to the rules, has control of all business of the Union within the area over which it is constituted to operate (sub-rule 30(a)). Sub-rule 30(d), so far as material, provides -

"(d) Without limiting its powers in any way each Branch Committee of Management shall have power to:

(i) ...

(ii) ...

(iii) Determine such assistance as it deems necessary to employ to carry on the work of the Branch; and

(iv) ...

(v) Determine what salaries or other remuneration shall be paid to Branch Officers and others employed by the Branch."

Sub-rule 30(e) provides -

(e) All paid officers, Organizers and employees of a Branch shall be subject to the control and direction of the Branch Committee of Management as expressed through the Branch Secretary."

The duties of the Branch Secretary are set out in sub-rule 32(c). It is sufficient for present purposes to note that that sub-rule contains the following provision -

"Notwithstanding anything contained elsewhere in these rules he shall also be in sole charge of the Branch office and those employees connected with the work thereof."

Sub-rule 47(c) provides -

"(c) (i)When the Branch Committee of Management has made a decision it shall have full effect and be observed by members of the Branch.

(ii)The Branch Committee of Management may reconsider the subject matter of any resolution at a subsequent meeting of the Committee on condition that notice of motion to do so is given at a meeting of such Committee and that notice of the intended reconsideration be given to all members of the Committee, and that the motion to reconsider is made special business at a subsequent meeting."

The resolution of 13 June 1984 must be viewed against the background of the events which preceded its adoption by the Branch Committee of Management. To place it in its context it is necessary to refer to some of those events.
Historically the affairs of the Brisbane Sub-Branch were administered from the offices of the Queensland Branch in Brisbane and the sub-branch did not have separate premises or a separate staff. That mode of operating the Brisbane Sub-Branch was no doubt a convenient one when the Queensland Branch Secretary also occupied the honorary office of Brisbane Sub-Branch Secretary. As the elections the outcome of which was declared on 9 March 1984 resulted in those offices being held by different persons, namely Mr Ward and Mr Williams respectively, the Branch Committee of Management deemed it desirable to consider whether any changes should be made in the previously existing arrangements.
When on or about 13 March 1984 Mr Ward assumed the position of Queensland Branch Secretary there were 7 office staff employed in the Queensland Branch office. On 15 March 1984 the Branch Committee of Management resolved, inter alia, that

"The Branch shall continue to make available to the Brisbane Sub-Branch Secretary any necessary office staff which will at least consist of a Stenographer and Clerk/Typist for the purpose of attending to correspondence, membership records, and any other purpose necessary to administer the Brisbane Sub-Branch. The Staff, as mentioned, shall be

immediately responsible to the Brisbane Sub-Branch Secretary ..."

On Tuesday, 17 April 1984, that is a few days before Easter, 6 of the 7 staff employed in the branch office resigned in circumstances which were not fully canvassed before me and in relation to which I need express no views except to note that some few weeks before their resignations the staff complained that their work in the branch office had been disrupted by the actions of Mr John Charles Penhallurick. Mr Penhallurick, who denied the allegations, had been a member of the respondent's team at the elections but had been unsuccessful in attaining office. The respondent had, however, since assuming office utilised his services to carry out certain research work for the Union and in that capacity he had spent a good deal of time at the Queensland Branch office. The seventh member of the office staff, Mrs Pamela Reynolds, resigned on 1 May 1984.
Reference to the complaints against Mr Penhallurick was made at a meeting of the Branch Committee of Management on 19 April 1984. The Branch Committee, noting that Mr Penhallurick was neither an elected official nor an employee of the Queensland Branch of the Union, carried the following resolution -

"This Branch Committee of Management hereby instructs the Branch Secretary that he is not authorised to delegate his powers of direction of staff and specifically that neither JOHN CHARLES PENHALLURICK nor any other member of the Queenland Branch or any employee thereof is authorised to give directions to office staff employed by the Queensland Branch. This is subject to any resolutions to the contrary of this committee in relation to the performance of their duties."

Immediately upon receipt of the resignations of the office staff the respondent, without reference to the Branch Committee of Management or any of the members thereof, employed staff to replace those who had resigned. Amongst those employed were Mr Penhallurick who had had 3 years' experience as a bookkeeper and paymaster and Mrs Fay Potter who had previously been employed by the Union at its Townsville office for a period of 3 years and who had had experience in office procedures and management including the keeping of records. Mr Penhallurick was employed on a casual basis as was Mrs Potter though, after a trial period of one month, she was regarded as a permanent, i.e. weekly, employee. Mrs Potter commenced duty on 18 April 1984 and Mr Penhallurick on 24 April 1984. Mrs Potter is the wife of Mr Ronald James Potter who had also been a member of the respondent's team at the recent elections and who had been elected a Branch Trustee and, as such, a member of the Branch Committee of Management. Other office staff were engaged by the respondent through the Commonwealth Employment Service. As a result, the strength of the office staff was restored to 7 though it is not entirely clear whether all had commenced duty by 26 April 1984.

Early on the morning of 26 April 1984 the Branch Committee of Management passed a resolution which included in its recitals (paragraph (e)) a statement noting that -

"Of the seven office staff of the Branch at Brisbane six have resigned and the seventh has indicated an intention to resign, and that this will cause difficulty to and add to the burden of work on the Branch Secretary and the Brisbane Sub-Branch Secretary."

Paragraphs (I) and (J) of the resolution were in the following terms -

(I) That there be five office staff on the branch assigned to the Branch Office and affairs of the Branch and that these staff be selected by and responsible to the Branch Secretary subject to final approval being given to their engagement by the Branch Committee of Management.

(J) That there be two office staff paid by the Queensland Branch assigned for the exclusive use of the Brisbane Sub-Branch, to be elected by the Sub-Branch Executive and responsible to the Sub-Branch Secretary and that those office staff consist of:-

(a) Senior Stenographer;

(b) Filing Clerk

subject to final approval being given to their

engagement by the Branch Committee of Management and that these two staff be employed in room 21, i.e., Branch premises not now used as part of the Branch office."

On 27 April 1984 Mr Asplin who, as I have said, is the Branch President of the Queensland Branch of the Union had a conversation with the respondent concerning the action taken by the respondent to employ staff in the branch office. Mr Asplin's contemporary handwritten note of the conversation reads -

"In company with Peter Channell, Wally Tutt Len Ward and Stewart Crosby, I informed Len Ward, that due to the evidence that was given today in the Federal Court of Australia in regards to his engaging staff for the Qld Branch office of the Union to replace the staff that had left, that I would be reporting the matter at the next B.C.O.M., and if that B.C.O.M. did not endorse his actions, he could find himself personally responsible for the payment of their wages."

Paragraphs (I) and (J), amongst others, of the resolution of 26 April 1984 were challenged in the proceedings previously before the Court as being contrary to sub-rule 32(c) of the rules of the Union, that sub-rule relevantly providing that, notwithstanding anything contained elsewhere in the rules, the Branch Secretary is to be in sole charge of the branch office and those employees connected with the work thereof. The Court, in a judgment delivered on 29 May 1984, held that those paragraphs of the resolution were not beyond the powers of the Branch Committee of Management. The Court said (pp.36-7) -

" To say that the Branch Secretary is to be in sole charge of the branch office and of those employees connected with the work of the branch office (sub-rule 32(c)) is not equivalent to conferring upon him power to determine the level of staffing to be employed in the branch office or the power to employ and dismiss staff. To have charge of the office and the employees is ... equivalent tp having under his control the office and such staff as the Branch Committee of Management deems it appropriate to employ in the sense that he is to have power to direct how they are to perform their duties in the course of their employment."

On 1 May 1984 the respondent had appointed Mrs Potter to be office supervisor in the Queensland Branch office and had issued written instructions to all office staff and organizers that all officials were to deal with Mrs Potter for the typing of their reports, general filing and record enquiries.
On 2 June 1984 Mrs Reynolds, who had resigned her position in the Queensland Branch office on 1 May 1984, was employed by the Brisbane Sub-Branch Secretary to perform the duties of receptionist, telephonist, clerk and typist in the Brisbane Sub-Branch. Approximately one week later Mrs Marion Frances Bean commenced duty in the Brisbane Sub-Branch as secretary to Mr Williams. Mrs Bean had previously been employed in the Queensland Branch Office and was one of those who resigned on 17 April 1984. Mrs Reynolds and Mrs Bean were engaged without reference to the Branch Committee of Management, that Committee subsequently, on 13 June 1984, endorsing their employment.
On 13 June 1984 the resolution the subject of these proceedings was carried. At that date there remained 7 employees in the Queensland Branch office, including Mr Penhallurick and Mrs Potter. Subsequently the number was reduced to 6 with the resignation of Miss Pamela Corkhill in late June 1984 and to 5 when Mr Penhallurick ceased to be an employee on or about 30 July 1984.
Before considering the text of the resolution of 13 June 1984 it is necessary to refer to certain other events that occurred subsequently to that date.
On 15 June 1984 Mr Asplin had a further conversaton with the respondent concerning the branch office staff. He told the respondent that those employees who had been employed by the respondent through the Commonwealth Employment Service would be re-hired if their services were terminated.
A further meeting of the Branch Committee of Management was held on 21 June 1984. The minutes of the meeting record that Mr Penhallurick had written to the respondent by letter dated that day notifying him that he intended to terminate his temporary employment with the Union "somewhere between the 10th and 20th July". A motion that the resignation be noted was, by majority, defeated and a further motion "that the correspondence be accepted" was carried. Mr Asplin gave evidence that the resignation of Mr Penhallurick was not received at that meeting because it was considered that Mr Penhallurick "had been sacked at the previous meeting" on 13 June 1984.
Attached to the minutes of the meeting of 21 June 1984 is a copy of a report by Mr Asplin concerning a meeting held on 15 June 1984 between himself and Mr C. Woods, an official of the Federated Clerks' Union of Australia. That meeting took place consequent upon the receipt of a letter dated 14 June 1984 from that organization seeking discussions concerning "events that have transpired during the past 24 hours". This is clearly a reference to the passage of the resolution of 13 June 1984.
The report refers to a decision of the Branch Committee of Management on 17 May 1984 not to endorse the actions of the respondent concerning the employment of office staff but no resolution of the Branch Committee of Management to that effect is in evidence. The report records that Mr Woods stated that his organization would be very disturbed if any of the past employees (thereby referring to those previously employed in the Queensland Branch Office of the Union) re-applied for positions and that Mr Asplin said that he would oppose acceptance of any such applications. The report further records a statement that the Federated Clerks' Union of Australia would strongly oppose any threat to the continuity of employment of the staff engaged through the Commonwealth Employment Service. The report continues -

"I (Mr Asplin) assured Mr Woods that I have already indicated to the committee that their employment is not under threat and that if they applied for advertised positions I would be recommending their retention based on remarks made by Branch Secretary and Industrial Research officer in regards to their efficiency.

There was no real opposition when I submitted that my recommendation to committee would be to pursue the course laid down by resolution to dismiss John Penhallurick and Mrs F. Potter, staff which the committee had decided were not beneficial for the harmonious operation of the Branch affairs that they had the reflection of being political appointments and that would also reflect to the new membership."

The complaint of the applicants is that the respondent has failed to carry out the resolution of 13 June 1984 and in so doing is in breach of paragraph 47(c)(i) of the rules of the Union. For the Court to order the respondent to carry out the resolution could have serious consequences for him as sub-section 141(4) of the Act prescribes a penalty for a failure to comply with a direction or order of the Court. The attitude of the Branch Committee of Management in this regard is made abundantly clear by paragraph (j) of the resolution which gave advance warning that appropriate action would be taken in the event of a failure to carry out the resolution.
It is, therefore, of crucial importance to consider whether the resolution stated with sufficient clarity and precision what it was that the respondent was required to do so as to make it appropriate that the Court should order that the resolution be carried into effect. A critical examination of the resolution is thus made necessary.
The first matter to notice is that the meaning of the opening words of the resolution is far from clear. Those words suggest that the following paragraphs of the resolution set out the manner in which previous resolutions of the Branch Committee of Management are to be implemented. Those resolutions are said to have been upheld by the decision of this Court given on 29 May 1984. That decision was concerned primarily with the resolutions of 26 April 1984 yet those resolutions are not referred to in the resolution of 13 June 1984. Instead, the resolution of 15 March 1984 (which was largely displaced by the resolutions of 26 April 1984) and the resolution of 19 April 1984 are identified as those which are to be implemented in the manner then stated.
The second matter to notice is that some parts of the resolution are cast in terms which expressly place an obligation on the respondent as Branch Secretary (see paragraphs (a) and (f)) or on the Branch President (paragraph (j)) whereas in other parts of the resolution the language does not clearly identify who is to carry out the obligation (see paragraphs (b), (e) and (g)).
The third matter is that in relation to some parts of the resolution the precise nature of the obligation is not clearly defined. Paragraph (a), for example, requires an advertisement to be placed but no guidance is given as to the period during which the invitation to apply for employment is to be open. It is to be implied from the fact that the advertisement was to appear on 15 June 1984 and the applications were to be dealt with by the Branch Committee of Management on 21 June 1984 (possibly after the applicants had been interviewed) that the advertisement would have had to fix an extremely short period within which applications were to be received. There was some debate during the course of the hearing whether paragraph (c) contemplated that the applications received by the Branch Secretary in response to the advertisement would go directly to the Branch Committee of Management for their evaluation and the selection of the successful applicants or whether the Branch Secretary was to consider the applications, arrange to conduct any necessary interviews and make recommendations to the Branch Committee of Management as to who should be employed, all before 21 June 1984. The language of the paragraph is to be contrasted with that of paragraph (I) of the resolution of 26 April 1984 which empowered the Branch Secretary to determine who should be employed subject to final approval being given by the Branch Committee of Management to the engagement of the persons he selected. I have not found it necessary to seek to resolve this question but there is no doubt that the resolution lacks clarity and precision in this respect.
The resolution also suggests in more than one paragraph, contrary to the fact, that what was being resolved was in accordance with the decision of this Court given on 29 May 1984 as if the Court had given its imprimatur to the substance of the decisions of the Branch Committee of Management. Paragraph (b) is expressed in terms which suggest that the Court in the judgment delivered on 29 May 1984 had countenanced the termination of the services of Mr Penhallurick and Mrs Potter. The matters which were then before the Court raised no such question. Indeed, the resolutions with which that judgment was concerned did not expressly mention either of those persons. Again, paragraph (i) misstates what the Court decided in the previous proceedings. The language used in that paragraph follows that of the relevant paragraph of the resolution of 15 March 1984, language which the Court was at pains to distinguish from that used in paragraph (E) of the resolution of 26 April 1984 which displaced the earlier resolution (see the judgment at p.32).
So far as paragraphs (a), (b), (c) and (d) of the resolution are concerned, it is common ground that the respondent did not cause to be placed in the Courier Mail on Friday, 15 June 1984 or on any other date an advertisement calling for applicants for the positions mentioned in paragraph (a) of the resolution. It is also common ground that, if paragraph (b) of the resolution required the respondent to take action to terminate the employment of Mr Penhallurick and Mrs Potter, he took no steps to do so.
It is clear that at all times since 26 April 1984 the Branch Committee of Management wished to have not more than 5 persons employed in the branch office. So to resolve was within its power (see the judgment of this Court delivered 29 May 1984). It is equally clear that by its resolution of 26 April 1984 the Branch Committee of Management empowered the respondent to select and employ the necessary staff without the need to call for applicants by advertisement (see paragraph (I) of the resolution of that date, a resolution which has not been rescinded or reconsidered in accordance with the procedure set out in paragraph 47(c)(ii) of the rules). At the time it passed that resolution the Branch Committee of Management must have been aware that 6 of the 7 staff previously employed had resigned and that the respondent had employed a number of persons in their place. It is true that the resolution required final approval to the engagement of staff to be given by the Branch Committee of Management but, having regard to past practice and what was done in relation to the engagement of staff for the Brisbane Sub-Branch, the resolution did not require that such approval be obtained prior to the staff being employed and commencing duty.
I have already referred to Mr Asplin's conversations with the respondent on 27 April 1984 and 15 June 1984 and to his report attached to the minutes of the meeting of the Branch Committee of Management held on 21 June 1984. From those conversations and what is contained in the report supplemented by what Mr Asplin said in his oral evidence, I am satisfied that the Branch Committee of Management had no intention of replacing the staff employed by the reponsdent (leaving aside for this purpose what was to be done concerning Mr Penhallurick and Mrs Potter). It is not suggested that the Branch Committee of Management had any information before it that the staff were other than competent and efficient. Indeed, Mr Asplin's report indicates that he had received favourable reports on their performance. The Branch Committee was clearly intending to go through a mere formality in advertising the positions, intending to confirm the existing staff in their employment. In my opinion paragraph (a) was not a means of implementing the resolutions referred to in the opening words of the resolution or, indeed, the resolution of 26 April 1984 if the resolution was intended to refer to it. Its passage was designed simply to embarrass the respondent and to place him in a position of difficulty in the event that he failed to comply with it.
It is also apparent that paragraph (a) cannot now be complied with according to its terms, if only because of the lapse of time. I have no doubt that in an appropriate case the Court might mould its order to overcome such a difficulty if otherwise the Court were satisfied that an order directing compliance should be made. In the light of the considerations to which I have adverted, I am not prepared to make an order in relation to paragraph (a) of the resolution.
Paragraphs (c) and (d) are consequential upon paragraph (a) and, no order being made in respect of paragraph (a), no order is called for in relation to paragraphs (c) or (d). I should, however, record that the respondent submitted that paragraph (c) of the resolution, if read as providing for the Branch Committee of Management to make the selection of staff, amounted to a reconsideration of paragraph (I) of the resolution of 26 April 1984 and was of no effect as the requisite procedure under paragraph 47(c)(ii) of the rules had not been followed. In the result I have found it unnecessary to deal with this submission.
Somewhat different considerations apply to paragraph (b) of the resolution. I have already expressed some criticism of the language in which it is cast. Another feature of the paragraph is that it places emphasis on the reduction of the number of staff to 5 and is clearly open to the interpretation that the termination of the employment of Mr Penhallurick and Mrs Potter was designed simply to achieve that end. If that had been the intenton of the Branch Committee of Management, the reduction of the staff to 5 had been achieved before the conclusion of the hearing of these proceedings by the resignations of Miss Corkhill and Mr Penhallurick. However, I am satisfied that that was not the intention of the Branch Committee of Management. Its intention was clearly stated by Mr Asplin in his oral evidence, namely that the services of Mr Penhallurick and of Mrs Potter were to be terminated on the ground that Mr Penhallurick was a supporter of the respondent and Mrs Potter was the wife of one of his supporters. In the case of Mrs Potter, this was the only ground for terminating her employment, there being no material before the Branch Committee of Management to suggest that she did not have appropriate qualifications or that she was performing her duties other than satisfactorily. In relation to Mr Penhallurick, however, Mr Asplin suggested that there were other matters than his association with the respondent which weighed with the majority of the Branch Committee of Management in voting for the resolution that his services be terminated, though these matters were not specified.
Notwithstanding the matters to which I have referred I am satisfied that what the Branch Committee of Management desired was the termination of the employment of Mr Penhallurick and Mrs Potter quite independently of the number of employees remaining in the Branch office. I am also satisfied that the respondent clearly understood that that was the position. I am also of opinion that the resolution is to be read as requiring the respondent to take the necessary action to bring about a terminaton of the employment of those employees. Again, I am satisfied that the respondent understood the resolution as requiring him so to act.
I, of course, say nothing as to the wisdom or justice of carrying into effect paragraph (b) of the resolution. The question for the Court is whether it was within the power of the Branch Committee of Management to pass it. Having regard to the reservation in paragraph (I) of the resolution of 26 April 1984 of the power in the Branch Committee of Management to give final approval to the engagement of the staff selected by the respondent pursuant to the authority thereby given to him and the general powers conferred on the Branch Committee of Management by sub-rule 30(a) of the rules of the Union, I am of opinion that paragraph (b) was within the powers of the Branch Committee of Management.

As has been mentioned Mr Penhallurick has since resigned and there is no need for the Court's intervention in that regard. However, the applicants have, in my opinion, made out a case justifying the Court making an order requiring the respondent to give effect to so much of paragraph (b) of the resolution as relates to the termination of Mrs Potter's employment.
It remains to consider paragraphs (e), (f) and (g) of the resolution of 13 June 1984.
Paragraphs (e) and (g) purport to authorise the Brisbane Sub-Branch Secretary and the staff employed in that sub-branch to use office equipment installed in the Queensland Branch office and used by the staff in that office for the purpose of carrying on the affairs of the branch. The equipment is described in paragraph (e) as a photocopy machine, a postage franking machine, a telex and an offset printing machine and in paragraph (g) as electric typewriters and a word processor. Paragraph (f) requires the Branch Secretary, in conjunction with the Brisbane Sub-Branch Secretary, to make the necessary arrangements to enable a telephone line in the Queensland Branch office to be utilised for the purpose of having two telephones installed in the Brisbane Sub-Branch office.
The respondent gave evidence to the effect that the necessary arrangements to have the telephones installed in accordance with paragraph (f) of the resolution either was, or would be put, in hand. In the light of that evidence the applicants did not press for an order requiring the respondent to comply with that part of the resolution and I need say nothing more about it.
In relation to paragraphs (e) and (g), Mr Williams, in affidavits filed in support of the applicaton, deposed -

that the Sub-Branch staff was not being granted full and unfettered use of the office equipment listed in paragraph (e) of the resolution of 13 June 1984 although he himself had not attempted to use any of the equipment;

that the respondent had refused to allow the sub-branch staff or himself personal access to the photocopy machine but required that the material be photocopied by a member of the staff employed in the branch office, this procedure resulting, it was said, in substantial delays;

that the Brisbane Sub-Branch staff had been granted the use of the postage franking machine provided the sub-branch mail to be franked was placed in the branch posting basket by 2.30p.m.;

that the Brisbane Sub-Branch staff had not attempted to use the telex machine; and

that the offset printing machine was available to the Brisbane Sub-Branch provided the material to be printed was handed to a member of the staff employed in the branch office and was printed by such staff.

Mr Williams also deposed in his affidavits that the office administrative equipment referred to in paragraph (g) of the resolution of 13 June 1984 had not been made available for use by himself or the Brisbane Sub-Branch staff. He said, however, that the Brisbane Sub-Branch had been provided with one electric typewriter (there being four in the branch office) and one manual typewriter.
Mrs Pamela Mary Reynolds gave evidence that in the course of her duties in the Brisbane Sub-Branch office she has had occasion to require documents to be photocopied. The procedure that is currently in operation is for the documents to be given to Mrs Potter and for her to arrange for the photocopying to be done. The documents and copies are then left on Mrs Potter's desk and are picked up by Mrs Reynolds or the other member of the sub-branch staff. This arrangement was said to be inconvenient. In cross-examination it appeared that Mrs Reynolds' main complaint was that there was some difficulty in crossing from room 21 which is occupied by the Brisbane Sub-Branch staff to the main office of the Queensland Branch. She said -

"It is across a passageway through what we call a stable door, a half-door, which has a very bad catch on it and takes some minute or so to get the catch open and then go over to the desk, check whether the photocopying (has been done), if Mrs Potter is not there to actually sing out to us that it is ready ..."

In relation to the franking machine, the sub-branch staff are not permitted themselves to use the franking machine. Mrs Reynolds conceded that the sub-branch mail is delivered to the branch office on each working day and is then despatched after being franked. There is a time fixed for the despatch of mail each day and it is clear that the staff of the sub-branch office have been complying with the procedures laid down and there has, so far as the evidence goes, not been any delay in the despatch of sub-branch mail.
The only evidence in relation to the use of the telex machine was Mrs Reynolds' evidence that on one occasion Mr Williams had asked if she could send a telex. She then approached Mrs Potter who informed her that if the text of the message was given to a nominated member of the branch office staff the message would be despatched by telex. That offer was not taken up.
As to the offset printer, there have been two occasions on which the staff of the sub-branch have requested that documents be prepared on the offset printer. The evidence establishes that the machine takes approximately three-quarters of an hour to set up for printing and between 30 and 45 minutes to clean the machine after it has been used. In those circumstances the usual office procedure is to do work on the offset printer in runs to save having to set it up for short jobs and then clean it. The evidence does not establish that work required to be done on the offset printer for the Brisbane Sub-Branch has not been done reasonably expeditiously. It may be noted that although Mrs Reynolds in her evidence complained that she was not permitted to use the offset printing machine herself, she subsequently agreed that she was not proficient in its use and would require a refresher course of training before doing so.
The evidence does not establish that the Brisbane Sub-Branch staff had made any request that work be performed on the word processor.
The respondent, Mr Penhallurick and Mrs Potter gave evidence which I accept, as to the office procedures operating in the Queensland Branch office. It is, of course, not part of the Court's function to express any opinion on the procedures which have been adopted but the evidence does not establish that they are not appropriate or that they have been applied in any deliberate way to inconvenience the efficient operation of the Brisbane Sub-Branch.
The trivial nature of the complaints that are seriously put forward by the applicants as warranting the intervention of the Court (and I might add at considerable expense to the members of the Union) is exemplified by Mrs Reynolds' evidence to which I have already referred concerning access from room 21 occupied by the sub-branch to the main office premises. I was also unimpressed by Mr Williams' assertion in paragraph 13 of his affidavit sworn 27 June 1984 that he had been refused access to the Queensland Branch Office, an assertion which he was unable to justify in his oral evidence.
I do not regard any of the complaints concerning the day to day operations of the Brisbane Sub-Branch office as put forward on behalf of the applicants as warranting judicial intervention to direct compliance with paragraphs (e) and (g) of the resolution of 13 June 1984 even if I were otherwise minded to make such an order. But there is, in my opinion, a more fundamental difficulty standing in the way of the applicants in seeking the relief they do.
In my opinion paragraphs (e) and (g) of the resolution encroach upon the powers conferred on the respondent as Branch Secretary by that part of sub-rule 32(c) that puts him in sole charge of the branch office and of those employees connected with the work thereof and this notwithstanding anything contained elsewhere in the rules. The Branch Committee of Management has, under sub-rule 30(a), a general supervisory role and it may give directions of a general nature to the Branch Secretary concerning the operation of the branch office. The rules, on their proper construction, require that the Branch Secretary be responsible to the Branch Committee of Management for the efficient operation of the branch office but, as a correlative to that duty, give him the sole power to make all necessary administrative decisions as to how, within the limits of the resources made available to him for that purpose by the Branch Committee of Management, that objective is to be achieved.
I am, therefore, of opinion that paragraphs (e) and (g) of the resolution of 13 June 1984 were outside the powers of the Branch Committee of Management and the application, so far as it relates to those paragraphs, is dismissed.
For the reasons set out above I order that the respondent observe the provisions of paragraph 47(c)(i) of the rules of the Union by carrying into effect that part of the resolution of 13 June 1984 that requires that the necessary steps be taken to terminate the employment of Mrs Potter as an employee of the Queensland Branch of the Union. Otherwise the application is dismissed. There will be no order as to the costs of the application.

[1984] FCA 298

26 SEPTEMBER 1984